Viewpoint | If criminals are temporarily placed outside prison due to pregnancy or lactation, please understand
Published:
2023-06-12
1. Legal basis and legislative spirit The second item of the first paragraph of Article 265 of the Criminal Procedure Law: Women who are pregnant or are breastfeeding their own babies; criminals sentenced to fixed-term imprisonment or criminal detention may be temporarily executed outside prison. The system of temporary execution outside prison is a special system of penalty execution in our country. The application of temporary execution outside prison to women who are pregnant or breastfeeding their babies is the maintenance of the health rights of women and babies, and is an important manifestation of the spirit of humanitarian justice. 2. Who can make a decision on the temporary execution of a pregnant offender? If the offender is found to be pregnant or nursing a baby before the sentence takes effect, the decision of the people's court (court of first instance) that handed over the execution shall be made; if the offender is found to be pregnant or nursing a baby after the sentence takes effect, the prison or detention center shall submit a written opinion to the prison administrative organ at or above the provincial level or the public security organ at or above the municipal level divided into districts for approval. Therefore, if the criminal is in a state of bail before the judgment takes effect, he can apply to the court for temporary execution outside prison when the judgment takes effect. For the application, the court will organize a review and seek the opinions of the procuratorate, and then make a decision on whether to agree to the temporary execution outside prison. 3. Is the sentence offset during the period of temporary execution outside prison? Temporary execution outside prison can be used to offset the sentence. The period of temporary execution outside prison shall be calculated from the date of service of the decision on temporary execution outside prison. Generally speaking, the decision to suspend execution outside prison will be made later than the effective time of the court decision. For example, (2022) Ji 0128 Xing Geng No. 2. On January 25, 2022, the People's Court of Shenze County issued a criminal judgment (2022) Ji 0128 Xingchu No. 1, and sentenced the criminal Song to six months in prison for obstructing credit card management. After the judgment came into effect, the current criminal Song Mou applied for temporary execution outside prison on the grounds of "pregnancy. The Shenze County People's Court solicited the opinions of the Shenze County People's Procuratorate and the Shenze County Judicial Bureau in writing, and both believed that the criminal Song Ce met the conditions for temporary execution outside prison. On May 5, 2022, the criminal Song Mou was temporarily sentenced to execution outside prison. 4. How long is the temporary execution time outside prison? China's criminal law has no explicit provisions on lactation during temporary execution outside prison. However, according to Article 63 of the labor law, Article 9 of the special provisions on labor protection of female employees and Article 9 of the interpretation of the Supreme People's Court on several issues concerning the specific application of law in the trial of crimes of trafficking in women and children, the definition of "infant" is consistent, that is, children under one year old. Based on this, in judicial practice, "lactation" is generally understood as "the period of breastfeeding one's baby under one year of age". That is, this period should be up to 1 year, from the date of birth to the following year's birthday. Because this is natural time, there is no situation that can prolong lactation. Thus, if the offender has not given birth at the time of the court's decision to suspend the execution outside prison, the period of suspension outside prison extends from the date of service of the decision to one year after the birth of the child. 5. Can I continue to apply for execution outside prison if I become pregnant again during the temporary execution outside prison? The Criminal Procedure Law and the Regulations on Temporary Execution Outside Prison jointly issued by the Supreme People's Court, the Supreme People's Procuratorate, the Ministry of Public Security, the Ministry of Justice, and the National Health and Family Planning Commission only stipulate the circumstances under which temporary execution outside prison can be temporarily executed. The number of times is specified. Therefore, if a woman who is breastfeeding her baby becomes pregnant again during the period of temporary execution outside prison, she can continue to apply for temporary execution outside prison. For example, case number:(2016) Ji 0426 Xing Zhi Zi No. 178-1, the criminal Ren Mouxiang is a woman who is breastfeeding her baby. The Shexian County People's Court made a decision on June 15, 2017 to temporarily execute her outside prison. When the temporary execution outside prison expired, the criminal Ren Mouxiang applied for temporary execution outside prison with another pregnancy and provided relevant supporting materials. On August 13, 2018, the Shexian County Court once again made a decision on its temporary execution outside prison. 6. Abortion during temporary execution outside prison. How to calculate the period of temporary execution outside prison? Once a pregnant woman has a miscarriage, she does not meet the conditions for temporary execution outside prison. For those whose sentences have not expired, continuing to reform in the community cannot achieve the purpose of punishment, and they need to be admitted to prison in time. Therefore, during the period of temporary execution outside prison, if the community correction staff find that the offender has miscarried, they will generally submit a recommendation for admission to the court that made the execution outside prison. After review, the court will make a decision on the execution of imprisonment in accordance with Article 268 of the the People's Republic of China Criminal Procedure Law. In judicial practice, the period during which the offender is admitted to correction after miscarriage is not allowed to offset the sentence. For example, (2021) Ji 0128 Punishment No. 4, after the judgment came into effect, the criminal Gu Moumei applied to the court for temporary execution outside prison in 2020 and 2021 on the grounds that she was in the "breastfeeding period" and "pregnant". After review, the court decided to temporarily execute him outside prison. In the process of execution, the staff of the Bureau of Justice found that Gu Moumei had miscarried, and suggested that the criminal Gu Moumei should be put in prison for execution on the grounds that the situation of temporary execution outside prison disappeared but the sentence was not expired. After investigation, the court found that the criminal Gu Moumei miscarried on October 1, 2021, and the situation of temporary execution outside prison has disappeared, and the sentence has not expired, and should be sent to prison for execution, and the criminal Gu Moumei was temporarily executed outside prison. Until October 1, 2021. 7. Is the offender a woman who is pregnant or breastfeeding her own baby necessarily subject to temporary execution outside prison? The Criminal Procedure Law stipulates that for criminals who are pregnant or breastfeeding, "can" apply to execution outside prison rather than "should", that is to say, it is not inevitable to apply execution outside prison to such criminals. In judicial practice, specific judgments should be made according to the criminals' performance in reform and attitude of confession and repentance. Of course, after admission, women who are pregnant or breast-feeding their babies will be given humane care, and temporary places like "homes" will be set up in the supervision places to try not to cause harm to innocent babies. When their breastfeeding period expires, they will be immediately handed over to their relatives. If there are no relatives or relatives who are unwilling to raise them, they can be raised by civil affairs agencies and social welfare agencies.
1. Legal basis and legislative spirit
The second item of the first paragraph of Article 265 of the Criminal Procedure Law: Women who are pregnant or are breastfeeding their own babies; criminals sentenced to fixed-term imprisonment or criminal detention may be temporarily executed outside prison. The system of temporary execution outside prison is a special system of penalty execution in our country. The application of temporary execution outside prison to women who are pregnant or breastfeeding their babies is the maintenance of the health rights of women and babies, and is an important manifestation of the spirit of humanitarian justice.
2. Who can make a decision on the temporary execution of a pregnant offender?
If the offender is found to be pregnant or nursing a baby before the sentence takes effect, the decision of the people's court (court of first instance) that handed over the execution shall be made; if the offender is found to be pregnant or nursing a baby after the sentence takes effect, the prison or detention center shall submit a written opinion to the prison administrative organ at or above the provincial level or the public security organ at or above the municipal level divided into districts for approval. Therefore, if a criminal is in a state of release before the judgment takes effect, he can apply to the court for temporary execution outside prison when the judgment takes effect. For the application, the court will organize a review and seek the opinions of the procuratorate, and then make a decision on whether to agree to the temporary execution outside prison.
3. Is the sentence offset during the period of temporary execution outside prison?
Temporary execution outside prison can be used to offset the sentence. The period of temporary execution outside prison shall be calculated from the date of service of the decision on temporary execution outside prison. Generally speaking, the decision to suspend execution outside prison will be made later than the effective time of the court decision. For example, (2022) Ji 0128 Xing Geng No. 2. On January 25, 2022, the People's Court of Shenze County issued a criminal judgment (2022) Ji 0128 Xingchu No. 1, and sentenced the criminal Song to six months in prison for obstructing credit card management. After the judgment came into effect, the current criminal Song Mou applied for temporary execution outside prison on the grounds of "pregnancy. The Shenze County People's Court solicited the opinions of the Shenze County People's Procuratorate and the Shenze County Judicial Bureau in writing, and both believed that the criminal Song Ce met the conditions for temporary execution outside prison. On May 5, 2022, the criminal Song Mou was temporarily sentenced to execution outside prison.
4. How long is the temporary execution time outside prison?
China's criminal law has no explicit provisions on lactation during temporary execution outside prison. However, according to Article 63 of the labor law, Article 9 of the special provisions on labor protection of female employees and Article 9 of the interpretation of the Supreme People's Court on several issues concerning the specific application of law in the trial of crimes of trafficking in women and children, the definition of "infant" is consistent, that is, children under one year old. Based on this, in judicial practice, "lactation" is generally understood as "the period of breastfeeding one's baby under one year of age". That is, this period should be up to 1 year, from the date of birth to the following year's birthday. Because this is natural time, there is no situation that can prolong lactation. Thus, if the offender has not given birth at the time of the court's decision to suspend the execution outside prison, the period of suspension outside prison extends from the date of service of the decision to one year after the birth of the child.
5. Can I continue to apply for execution outside prison if I become pregnant again during the temporary execution outside prison?
The Criminal Procedure Law and the Regulations on Temporary Execution Outside Prison jointly issued by the Supreme People's Court, the Supreme People's Procuratorate, the Ministry of Public Security, the Ministry of Justice, and the National Health and Family Planning Commission only stipulate the circumstances under which temporary execution outside prison can be temporarily executed. The number of times is specified. Therefore, if a woman who is breastfeeding her baby becomes pregnant again during the temporary execution outside prison, she can continue to apply for temporary execution outside prison. For example, case number:(2016) Ji 0426 Xing Zhi Zi No. 178-1, the criminal Ren Mouxiang is a woman who is breastfeeding her baby. The Shexian County People's Court made a decision on June 15, 2017 to temporarily execute her outside prison. When the temporary execution outside prison expired, the criminal Ren Mouxiang applied for temporary execution outside prison with another pregnancy and provided relevant supporting materials. On August 13, 2018, the Shexian County Court once again made a decision on its temporary execution outside prison.
6. Abortion during temporary execution outside prison. How to calculate the period of temporary execution outside prison?
Once a pregnant woman has a miscarriage, she does not meet the conditions for temporary execution outside prison. For those whose sentences have not expired, continuing to reform in the community cannot achieve the purpose of punishment, and they need to be admitted to prison in time. Therefore, during the period of temporary execution outside prison, if the community correction staff find that the offender has miscarried, they will generally submit a recommendation for admission to the court that made the execution outside prison. After review, the court will make a decision on the execution of imprisonment in accordance with Article 268 of the the People's Republic of China Criminal Procedure Law. In judicial practice, the period during which the offender is admitted to correction after miscarriage is not allowed to offset the sentence. For example, (2021) Ji 0128 Punishment No. 4, after the judgment came into effect, the criminal Gu Moumei applied to the court for temporary execution outside prison in 2020 and 2021 on the grounds that she was in the "breastfeeding period" and "pregnant". After review, the court decided to temporarily execute him outside prison. In the process of execution, the staff of the Bureau of Justice found that Gu Moumei had miscarried, and suggested that the criminal Gu Moumei should be put in prison for execution on the grounds that the situation of temporary execution outside prison disappeared but the sentence was not expired. After investigation, the court found that the criminal Gu Moumei miscarried on October 1, 2021, and the situation of temporary execution outside prison has disappeared, and the sentence has not expired, and should be sent to prison for execution, and the criminal Gu Moumei was temporarily executed outside prison. Until October 1, 2021.
7. Is the offender a woman who is pregnant or breastfeeding her own baby necessarily subject to temporary execution outside prison?
The Criminal Procedure Law stipulates that for criminals who are pregnant or breastfeeding, "can" apply to execution outside prison rather than "should", that is to say, it is not inevitable to apply execution outside prison to such criminals. In judicial practice, specific judgments should be made according to the criminals' performance in reform and attitude of confession and repentance. Of course, after admission, women who are pregnant or breast-feeding their babies will be given humane care, and temporary places like "homes" will be set up in the supervision places to try not to cause harm to innocent babies. When their breastfeeding period expires, they will be immediately handed over to their relatives. If there are no relatives or relatives who are unwilling to raise them, they can be raised by civil affairs agencies and social welfare agencies.
Key words:
Related News
Zhongcheng Qingtai Jinan Region
Address: Floor 55-57, Jinan China Resources Center, 11111 Jingshi Road, Lixia District, Jinan City, Shandong Province
